At the Bar; A Republican senator forces the Administration to rethink its strategy on judicial appointments.

By Neil A. Lewis

Published: December 9, 1994

WASHINGTON—
Three senior Clinton Administration officials recently trudged up to Capitol Hill on short notice to confer with Orrin G. Hatch of Utah, soon to be the new chairman of the Senate Judiciary Committee.

It turned out to be something other than a simple courtesy call. Senator Hatch was, by all accounts, his usual courtly self. But he was unusually blunt in discussing the new political situation that will come with Republican control of the Senate. He told the officials that he was now the principal gatekeeper on who gets to be a Federal judge. And, he said, he would not hesitate to engage the Administration in combat on that issue.

How the Administration will respond to this new arrangement was expressed by Eleanor D. Acheson, a senior Justice Department official who oversees judicial nominations and was one of the three officials who met with Senator Hatch.

Asked in an interview about what kind of people President Clinton will now be trying to put on the Federal bench, Ms. Acheson said, "I don't think anybody in the Administration is laboring under the notion that the culture and environment hasn't changed drastically." She said that meant there could be "constraints" on the type of people involved.

All of this suggests that President Clinton, who has been less than bold in choosing nominees for the Federal courts up to now, may become even less so.

The political upheaval on Election Day happened in full view of everyone. But the long simmering battle over the ideological shape of the nation's Federal courts has always been waged in a far subtler manner.

President Ronald Reagan and President George Bush essentially turned over the privilege of selecting judges to lawyers in the conservative wing of the Republican Party, who embarked on a crusade to remake the Federal courts. By the end of the 12 years of Republican rule, more than 65 percent of the nation's Federal judges were Reagan or Bush appointees. And many were unmistakably conservative, their collective rulings a rebuke to anyone who still contends that judges are simply neutral referees in some grand legal game.

Neither Mr. Reagan nor Mr. Bush was a lawyer, yet their Administrations were responsible for profound change in the nature of the Federal bench. In contrast, President Clinton, a former professor of constitutional law, has been far less interested in the issue.

Left-of-center advocacy groups had hoped that Mr. Clinton would name liberal judges as a counterweight to the conservative judicial tide. Instead, while he has put more women and members of minorities on the bench, he has generally avoided spending any political capital by picking middle-of-the-road sorts unlikely to engender confirmation battles.

"We did not go about this with the thought that we had to recover the Federal courts," Ms. Acheson said.

She said the Administration hoped to have a productive relationship with Senator Hatch. She said the Administration believed that it should be reluctant to name anybody to a judgeship unless it could count on 61 votes in the Senate. Sixty-one votes? Yes, she said, that is the number needed to overcome a filibuster.

That is a remarkably high political standard. Filibusters on judicial nominations are exceedingly rare and even the most embattled nominees in the Republican era needed only a simply majority of 51 votes to get on the bench.

Clarence Thomas, perhaps the most controversial Supreme Court nominee in the nation's history, sits on the Supreme Court after being confirmed by a 52 to 48 margin.

Senator Hatch is certain to face increasing pressure from the conservative advocacy groups who now hope he will bear down on any nominees that attract their attention as too liberal.

Thomas L. Jipping of the Free Congress Foundation, the Washington-based organization that is leading the conservatives' campaign on judicial nominations, complained that in the first two years of the Clinton Administration the Senate confirmed 127 judges, "but there were only two cases in which there was any debate or opposition." Clearly, he expects Senator Hatch to raise the level of his game.

The first test is likely to be the Administration's efforts to fill a vacancy on the United States Court of Appeals for the District of Columbia Circuit. White House officials have said that Mr. Clinton would like to fill it with Peter B. Edelman, counselor to the Department of Health and Human Services and a former law professor at Georgetown University Law School.

But Mr. Hatch and Mr. Jipping have already signaled that Mr. Edelman, a former aide to Senator Robert F. Kennedy, would be unacceptable.

It is a difficult situation for Mr. Clinton, who with his wife, Hillary, has had a long friendship with Mr. Edelman and his wife, Marion Wright Edelman, of the Children's Defense Fund. It remains unclear whether Mr. Clinton will choose to take on Mr. Hatch over Mr. Edelman. Or anyone else.